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2014 DIGILAW 451 (JK)

Manzoor Ahmad Sheikh v. Naseema Bano

2014-11-17

ALI MOHAMMAD MAGREY

body2014
Judgment 1. This petition under Section 561-A Cr.P.C. challenges the order dated 21.02.2014 passed by the learned Judicial Magistrate, 1st Class, Baramulla, in proceedings under Section 488 Cr.P.C. initiated by respondent no.1 against the petitioner herein whereby the learned Magistrate has directed the petitioner to pay to petitioner no.1 an interim maintenance of Rs.2,000,00 per month. 2. The case of respondent no.1 before the learned trial court is that the two, respondent no.1 and the petitioner, had entered into a nuptial knot some six years back. Respondent no.2, a four year old female child, is the off spring of the duo. Alleging desertion and neglect by the petitioner, respondent no.1 filed the petition under Section 488 Cr.P.C. seeking maintenance for herself from the petitioner on the ground of her being his legally wedded wife and for the female child having been born out of the wedlock. Coextensive therewith, the respondent filed an application for grant of interim maintenance. The learned Judicial Magistrate by the impugned order has allowed an interim maintenance of Rs.2000.00 to respondent no.1 and Rs.1500.00 to the female child. 3. The petitioner, on appearance before the learned Magistrate, while admitting the liability to maintain his female child, took the plea of prior divorce to respondent no.1 and, thereby, resisted her claim. 4. The learned Magistrate, relying on the Supreme Court judgment m Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 , in its impugned order has observed that interim maintenance is awarded to provide for interim subsistence to those who are entitled for maintenance with the object that the applicant should survive during the pendency of the proceedings to enable her to reap the fruits of the final order which may be passed in her favour and that the underlying idea of this provision is to prevent vagrancy and destitution and that this serves as an efficacious social welfare object. Further, relying on another judgment of one of the Coordinate Benches of this Court in Manzoor Ahmad Banday v. Yasmeen Jan, 2006(1) JKJ 102 , the learned Magistrate has observed that if interim maintenance will not be granted keeping in view the plea of divorce raised by the husband that will amount to accepting the plea of divorce. Observing so, the learned Magistrate has passed the impugned order. 5. I have heard learned counsel for the parties and considered the matter. 6. Mr. Observing so, the learned Magistrate has passed the impugned order. 5. I have heard learned counsel for the parties and considered the matter. 6. Mr. Moomin Khan, learned counsel for the petitioner, submitted that petitioner has divorced respondent no.1 much prior to the initiation of the present proceedings by her by virtue of a deed dated 12.01.2011 which was duly despatched by him to respondent no.1. Learned counsel submitted that since the parties are Muslims and governed by Shariah, a divorced wife under Shariah is not entitled to maintenance. Learned counsel cited and referred to a recent judgment dated 03.03.2014 of this Court rendered in Masarat Begum v Abdul Rashid Khan, 2014 (3) JKJ 1 , and submitted that the case is covered by that judgment. On the other hand, learned counsel for the respondent no. 1 denied the plea of divorce taken by the petitioner. He further submitted that the petitioner has taken contradictory stands in that, while in his written-statement before the learned trial Magistrate he has stated that he had divorced his wife in the year 2010, in this petition the stand taken is that respondent no.1 was divorced on 12.01.2011 by virtue of a written deed. 7. In Masarat Begum v Abdul Rashid Khan (supra) this Court, after taking note of the judgments of the Supreme Court in Shamima Ara v. State of UP, AIR 2002 SC 3551 , Savitri v. Govind Singh Rawat (supra) and some of the judgments of the Coordinate Benches of this Court, has held as under:— “ ... [T]he statutory provisions of Sections 488 to 490 Cr.P.C do not contemplate the grant of interim maintenance, and the same has been developed by law of precedent. The concept so developed is strictly restricted by two complementary rigours; first, the rigour of the principles governing the grant of interim relief, and second the personal law, subject to which alone the interim maintenance can be granted. Viewed thus, in order to justify the grant of interim maintenance, the applicant has to establish a prima facie case, that she is entitled to maintenance under Section 488 Cr.P.C. In order to arrive at such a conclusion the Magistrate is required to have some semblance of material on record in the shape of evidence. Viewed thus, in order to justify the grant of interim maintenance, the applicant has to establish a prima facie case, that she is entitled to maintenance under Section 488 Cr.P.C. In order to arrive at such a conclusion the Magistrate is required to have some semblance of material on record in the shape of evidence. The learned Session Judge by the impugned order, as noticed above, has rightly directed the learned Magistrate to consider the matter afresh on the basis of evidence of summary nature to be produced by the parties and pass fresh orders in accordance with law. Therefore, the judgment of the Revisional Court, stating the correct position of law, does not warrant any interference under the inherent powers of this Court.” 8. In the instant case, the impugned order reveals that the learned Magistrate has not taken on record or considered any evidence or material of even summary nature nor recorded any prima facie finding on the basis of such evidence. The learned Magistrate instead has straightaway relied upon the law of precedents in Savitri v. Govind Singh Rawat (supra) without taking note of the context of the facts and the questions under consideration in those cases. It is settled law that it is neither desirable nor permissible to pick out a word or a sentence from a judgment of the superior court, divorced from the context of the question under consideration therein and to treat it to be the complete law declared by the court. In C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 , the Supreme Court has clearly laid down that the judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. It has been laid down therein that:— “... In C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 , the Supreme Court has clearly laid down that the judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. It has been laid down therein that:— “... A decision of this Court takes its colour from the questions involved in the case in which it rendered and while applying the decision to a later case, the Court must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the contest of the questions under consideration by this Court, to support their reasonings.” In the aforesaid judgment, the Supreme Court relied upon its earlier judgment in Madhav Rao Scindia v. Union of India, (1971) 1 SCC 85 , wherein it was held as under:— “It is not proper to regard a word, a cause or a sentence occurring in a judgment of the Supreme Court, divorced from its context as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.” 9. In Savitri v. Govind Singh Rawat (supra), the Supreme Court clearly held that Chapter IX of the Code (Central Code) contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case, provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance. The judgment makes it abundantly clearly that maintenance allowance can be granted ‘provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance’. It hardly needs to be mentioned here that the same principle would hold hue of interim maintenance. 10. The judgment in Manzoor Ahmad Banday v. Yasmeen Jan (supra) was rendered by a Coordinate Bench of this Court much prior to the enactment of Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007 (Act no. IV of 2007). It hardly needs to be mentioned here that the same principle would hold hue of interim maintenance. 10. The judgment in Manzoor Ahmad Banday v. Yasmeen Jan (supra) was rendered by a Coordinate Bench of this Court much prior to the enactment of Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007 (Act no. IV of 2007). Section 2 of the aforesaid Act, promulgated enacted by the State Legisature after the judgment in Manzoor Ahmad Banday v. Yasmeen Jan (supra), under the heading “Application of Personal Law to Muslims, provides that in all questions regarding marriage, dissolution of marriage, including talaq, ila, zihar, lain, khula and mubaraat, dower, guardianship, etc., the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). Secondly, the judgment in Manzoor Ahmad Banday v. Yasmeen Jan (supra) was based on the decision of the Supreme Court in Shamima Ara v. State of UP, AIR 2002 SC 3551 . The facts in Shamima Ara v. State of UP and the present case are quite distinguishable. Shamima Ara v. State of UP’s case did not involve the question of grant or otherwise of interim maintenance. In that case, the application under Section 125 Central Cr.P.C., corresponding to Section 488 of the State Code, had been filed before the Family Court on 12.04.1979. The written statement was filed by husband on 05.12.1990 wherein he had taken the plea of prior divorce having been pronounced in presence of certain witnesses on 11.07.1987. At the trial, the plea of prior divorce was not supported by any independent witness, muchless the persons before whom he had professedly pronounced the divorce. The Family Court had relied upon an affidavit filed by the husband in some other proceedings where Shamima Ara, the appellant before the Supreme Court, had not been a party. In that affidavit, he had stated that he had divorced his wife. The Supreme Court observed that the affidavit could not have been taken as a proof of divorce. Apart from that, the High Court in that case had upheld as talaq the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. It is in that context that the Supreme Court held:— “... Apart from that, the High Court in that case had upheld as talaq the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. It is in that context that the Supreme Court held:— “... The respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter parte, containing. a self- serving statement of respondent no.2, could not have been read in evidence as relevant and of any value.” The Supreme Court further held that talaq is to be pronounced and interpreting the word “pronounce” observed as under:— “We are also of the opinion that the talaq to be effective has to be pronounced. The term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate ...” It thus becomes axiomatic that in Shamima Ara v. State of UP (supra) the appellant’s claim for maintenance had been disallowed basing the judgment on the sole testimony of the husband and the aforesaid affidavit, though the plea of prior divorce was not supported by any other witness, muchless the witnesses before whom the divorce was alleged to have been pronounced. In Manzoor Ahmad Banday v. Yasmeen Jan (supra), the facts seem to have been somewhat similar, inasmuch the judgment does not speak of any divorce deed have been executed. The judgment reveals that there was a simple plea of prior divorce, without furnishing any particulars and details thereof. 11. In Manzoor Ahmad Banday v. Yasmeen Jan (supra), the facts seem to have been somewhat similar, inasmuch the judgment does not speak of any divorce deed have been executed. The judgment reveals that there was a simple plea of prior divorce, without furnishing any particulars and details thereof. 11. In the instant case, the petitioner’s case is that he has divorced respondent no.1 by a duly executed deed of divorce, a photocopy whereof has been placed on record of this petition. It is his further assertion that said divorce deed was duly served on respondent no.1. 12. Though the learned Magistrate has in its order recorded that maintenance is awarded to provide for interim subsistence to those who are entitled for maintenance, but has failed to record a prim facie finding in that regard. Entitlement of respondent no.1 to maintenance, keeping in view the fact that the parties are Muslims, governed by Shariah, would, naturally, depend upon subsistence of the marriage between the two. 13. In view of the above, this petition is disposed of, providing as under:— “That the learned trial Magistrate shall reconsider the matter afresh after taking some summary evidence of the parties and record a prima facie finding as to subsistence of marriage between the parties and entitlement of respondent no.l to maintenance in light of the personal law applicable to the parties. Given the nature of the proceedings, the learned Magistrate shall make an endeavour to decide the application within the shortest possible time, preferably within a period of one month from today. The impugned order to the extent it relates to grant of interim maintenance to respondent no.1 is set aside. It is made clear that in case the learned Magistrate comes to a prima facie finding that the marriage between the parties subsists and, therefore, respondent no.1 is entitled to maintenance, it would be open for the learned Magistrate to order its payment retrospectively from the date of the impugned order.” 14. This disposes of the connected CMP. 15. The certified copy of the impugned order produced by the learned counsel for the petitioner in terms of order dated 11.11.2014 is taken on record. 16. Registry to send down a copy of this order to trial Magistrate for necessary action.